House Passes DHS ‘Insider Threat’ Program Bill That Could Impact Whistleblowers

A pair of silhouetted figures stand near a computer monitor in a darkened office. (U.S. national security agency pamphplet against insider threats)

The United States House of Representatives passed legislation to establish an “insider threat” program at the Department of Homeland Security, which would permit the continuous monitoring of credit, criminal, and social media activities of DHS employees and would potentially impact national security whistleblowers.

Referring to US Army whistleblower Chelsea Manning and NSA whistleblower Edward Snowden, King lumped the two whistleblowers in with Aaron Alexis, who killed twelve Americans in the Washington Navy Yard in 2013.

“In the Manning and Snowden espionage scandals, two trusted insiders abused their access to classified information,” King stated. “When Aaron Alexis attacked the Washington Navy Yard, 12 Americans lost their lives. In the face of these insider threat scenarios, it is vital that government agencies have the tools to detect and disrupt future insider threat situations before damage is done. Unfortunately, all three were able to conduct their traitorous work undetected because the government had at one time vetted and granted them access to secure facilities and information systems.”

King claimed his bill would reinforce “the message that a security clearance is a privilege granted to individuals who have pledged to protect the American people from threats domestically and abroad.” In other words, an oath of secrecy, which Homeland Security employees swear to protect regardless of whether they believe their government is engaged in rampant corruption.

“Had investigators more thoroughly scrutinized Edward Snowden’s background, they might have identified disturbing trends that made him unfit to hold a clearance of any kind and a potential insider threat to U.S. national security,” King added. “Had federal adjudicators had access to criminal history records from the Seattle Police Department, they would have been aware of Aaron Alexis’ arrest in 2004 on firearms charges and potentially conducted a more rigorous screening of his background prior to authorizing him access to the Washington Navy Yard.”

Yet, it is unclear what specifically King meant by “disturbing trends.” Snowden was not charged with or suspected of any criminal activity prior to his decision to blow the whistle on massive global surveillance.

King quoted former CIA and NSA director Michael Hayden, who concluded Snowden and WikiLeaks demonstrated a “trusted insider” is far more capable of doing damage than in the past, “and, therefore, we have to be even more vigilant.”

Total surveillance of DHS employees may be permitted

Representative Bennie G. Thompson of Mississippi, who opposed the bill, took to the floor to raise concerns prior to the vote.

“I could not support this legislation when it was considered by the full committee because it did not include language to prevent the somewhat broad authority granted under this bill for being used by DHS to deploy ‘continuous evaluation,'” Thompson explained. “‘Continuous evaluation’ is an automated system that constantly monitors public and private databases for information regarding the credit, criminal, and social media activities of certain individuals.

“The Defense Department has an extensive pilot underway, and I am concerned that federal agencies, with the understandable urge to protect their IT systems and facilities, are racing to acquire this capability before knowing whether such costly systems are even effective.”

In 2014, Senators Chuck Grassley of Iowa and Ron Wyden of Oregon wrote a letter to Director for National Intelligence James Clapper, which scrutinized the incorporation of “continuous monitoring” of government employees with security clearances.

“Any continuous evaluation or monitoring of holders of clearances in the legislative branch by the executive branch would raise serious issues related to the separation of powers and potentially violate fundamental privileges of the legislative branch guaranteed in the Constitution,” the senators argued. “Accordingly, so that we may discuss the serious constitutional issues implicated by any such claim, please provide an explanation as to whether you believe that the executive branch has the authority to engage in ongoing monitoring of legislative branch employees with clearances or members of Congress with access to classified information.”

The senators noted Clapper had informed the Senate Armed Services Committee in February 2014 that the government needed a “system of continuous evaluation where when someone is in the system and they’re cleared initially, then we have a way of monitoring their behavior, both their electronic behavior on the job as well as off the job to see if there is a potential clearance issue.”

“Any monitoring of employees’ ‘electronic behavior on the job as well as off the job’ needs to include safeguards to prevent the chilling of legitimate whistleblower communications and protect the confidentiality of any legally privileged information,” the senators suggested. If protected disclosures are captured “inadvertently,” the senators recommended they “never be routed back to an official involved in any alleged wrongdoing reported by the whistleblower.”

Neither Grassley nor Wyden posted a reply to this letter on their Senate websites, and it is unclear what kind of follow-up or attention this issue has been given by U.S. security agencies.

To the extent that workplace monitoring or surveillance technology is used to track DHS personnel, it may mean dossiers are created of suspicious employees who have security clearances, who can be monitored even if they have not taken information with the intent to make unauthorized disclosures.

The effect on whistleblowers if DHS leaders have this expanded power

DHS already has had significant problems when it comes to its inspector general’s office, where whistleblowers are supposed to feel comfortable with contacting to report waste, fraud, abuse, or wrongdoing. But Charles K. Edwards, who served as acting DHS inspector general from 2011 to 2013, was found to have a cozy relationship with the exact same senior DHS officials he was expected to oversee.

A Senate subcommittee investigation also concluded Edwards had “directed reports to be altered or delayed to accommodate senior DHS officials” and “did not recuse himself from some audits and inspections that had a conflict of interest related to his wife’s employment, resulting in those reports being tainted.”

Edwards did not properly investigate a Secret Service director when whistleblowers informed him they were ordered by the director to conduct a surveillance operation on his behalf after one of his assistants complained she was being “harassed” by a neighbor.

Imagine if DHS had an “insider threat” program with more advanced surveillance technology and the authority to track all the actions of government employees. What would happen if individuals challenged the decisions of superiors and accused them of abusing their power? Does anyone really think the “insider threat” program would not be wielded against those individuals in some manner? And what is in place to prevent the “insider threat” program from being used to clamp down on whistleblowers?

Little differentiation between terrorists, spies, and leakers

Finally, the legislation is troubling because it incorporates a broad definition of “insider threats” and adopts a “War on Terrorism” framework:

The term ‘insider threat’ means the threat that an insider will use his or her authorized access, wittingly or unwittingly, to do harm to the security of the United States, including damage to the United States through espionage, terrorism, the unauthorized disclosure of classified national security information, or through the loss or degradation of departmental resources or capabilities.

There is no differentiation between terrorists or employees who turn to violence and those who leak “classified national security information.” As King makes clear, the view engrained in the legislation is that someone like Snowden or Manning can do just as much damage to U.S. national security as the Navy Yard shooter.

It treats leaks as if they are similar to “espionage,” which is exactly what the Justice Department does when prosecuting government employees for unauthorized disclosures. Why a government employee released “classified national security information” does not matter. The act itself is rendered a traitorous crime that deserves fierce prosecution.

Currently, there does not appear to be a similar bill in the Senate that would expand the DHS “insider threat” program. However, what is significant is in the aftermath of WikiLeaks and Snowden there already are numerous government agencies with “insider threat” programs. There already are known problems, like how a CIA system intercepted the whistleblower communications related to the Senate Intelligence Committee report on CIA torture.

The public has little to no idea how officials are ensuring these programs have not created a chilling effect against potential whistleblowers. In spite of this fact, politicians like the venomous Peter King are moving to incorporate more draconian spying apparatuses that can be used to control government employees.